NO. 07-01-0353 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D MARC H 20, 2002

______________________________ JOSE PH P ETE ROCKH OLT, Appellant

v. THE STATEOF TEXAS , Appellee

_________________________________ FROM THE 46 th DISTRI CT COURT OF HARDEMAN COUNTY;

NO. 3686; HON. TOM NEELY, PRESIDING

_______________________________ Before BOYD, C.J., QUINN and REAVIS, JJ. Joseph Pete Rockh olt (appellant) ap pealed his conv icti on f or d rivin g w hile intoxicated. His two points of error concerned the sufficiency of the evidence underlying th e c on vi ct i on an d t he tr i al co ur t’ s f ai l ur e t o g ra nt hi m a n ewtr i al . W e a ff i rm. Issue One – Conflict of I nterest Appellantinitial ly contended that thetrial court erred in denying his motion for new tria l. He be l i ev ed hi mse l f e nt i tl ed to sa me because “of the conf lict of interest between the Prosecutor and the attorney for theDefendant.” The supposed confl ict existed becau se1 That no actual c onfl ict ex isted distingui shes the s ituati on before us from that in Ramir ez v. State , 13 S. W .3d 482 ( Tex . A pp. -Co rpu s Chr ist i 2 000, pet . de ni ed) , a c ase up on whi ch a ppel la nt r el ie d. T hus, Ramirez is not controll ing. 2 the pr os ec ut or an d c ou ns el wer e u nc l e a nd ne ph ew , r es pe ct i ve l y. Fu rt he rmo r e, t his conflict “prejudiced [the appellant] in the formof ineffectivecounsel .” (Em phasis ad ded). W e overrul e the contenti on for the fol lowing reaso ns. First, appellant adm itted to knowing of th e relationship between his attorney and the prosecutor

before trial. Despite having this knowledge, he voiced no obj ect ion. Un der this situation, he m ust show that an actual confl ict existed before w e can hold that he w

as denied effective assistance of counsel. Cuyler

v. Sulli van , 446 U.S. 33 5, 350, 100 S. Ct. 1708, 1719, 64 L. Ed. 2d 333, 347-48 (1980); Pollan v. State , 612 S.W .2 d 5 94 , 5 96 (T ex. Cr i m. App. 1981). A

potential conflict is not enough. Id. H ere , the only purported evidence of a conflict consisted of thefam ilial relationship between defense couns el and the prosecutor. How

ever, that

alone is notevidence of an actual conflict. State v. K elley, 20 S.W.3d 147, 154-55 (Tex. App.–Texarkana 2000, no pet.). Gi ven this and the absence of any ev idence te nding to illustra te that trial couns el was

re quired to c hoose between advancing appellant’s interests or those of another, see Ex parte Morrow , 952 S.W.2d 530, 538 ( Tex. Crim . App . 1997), cert. deni ed , 525 U.S. 81 0, 142 L.Ed.2d. 3 1, 119 S.Ct. 40 (1998) (stating that a conflict existsw hen cou nse l m ust cho osebet

w een advanc ing h is clien t’s interests or thos e of another to his client’sdetrim ent), appellant failed to il lustrate that his counsel was

ineffective. 1 Second, appel lant ’s tri al co unsel was not appo inte d by the State bu t retai ned. So too did appellant know of the relationship in question before trial and withheld objection3

or com ment . Moreover, th e trial court afforded himopportunity to develop the supposed confli ctviaa hearing on his mot ion for new trial. Other than opining that trial counsel m ay nothave fo ugh t fo r him

“like I thought he should have,” no evidence of how therela tion ship impacted upon the quality of counsel’s representat ion or the outcom e of th e trial was presented. On the other han d, appellant did acknowledge that 1) his attorney and the State’s representative cam e “to words” atleast once during the trial and 2) trial counsel did not refuse to do anything w hich appellant asked him to do. While the court in Kelley stated that a potenti al confl ict may be a factor to weigh when a trial court is asked to grant a new trial, it did not hold that a potential conflict alone warrantsa new t rial. Kelley v. State , 20 S.W.3d at 155. This is especially so when the trial court gave the appellant a chance to develop the pur por ted con flict (a lbeit

pos t-t rial)and appellant proved neither a conflict nor its affect. Under these circumstances, we cann ot saythat the trial court abused its discretion in refusing to grant appellant a new t rial. See id. at 150 (holding that the decision to grant a new trial li es in the discretion of the trial court). Issue Two – Sufficiency of the E vidence Next, appellant questioned the sufficiency of the evidence underlying h is convi ction. The entirety of his argum ent consisted of the following: The Defendant does not recite point by point the relative weight of the evidence for reversal because of t he p res um ed e rro r he retofo re s et f ort h in P ointof E rro r No . 1. Ve l non this ass ert ion, it issub m itte d th at t he w eig h t and sufficiency of the e vidence i s con tra ry to th e ve rdic t re nde red in t his cas e j ust ifyi ng arevers al an d re m and for new tria l.4

As can be readily seen, neither legal authority nor analysis accomp anies the contention. Consequentl y, appellant failed to com ply with T exas R ule of Appellate Procedure 38.1(h) requiring sam e and, thereby, w aived the contention. Alvarado v. State , 912 S.W.2d 199, 210 (T ex . C ri m. App. 1995) (holding that one w aives an issue if he neither cites authority support ing it or prov ides substantive a nalysis explaining it). Accordingly, the j udgme nt is affirmed.

Brian Quinn Justice Do not publish.